TMI Blog2023 (9) TMI 1275X X X X Extracts X X X X X X X X Extracts X X X X ..... speaks from the death of the testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation. Coming to the facts of the case, a careful perusal of the relevant material on record and applying the provisions and the case laws it is evident that the Will was duly executed by the testator in the presence of witnesses out of his free Will in a sound disposing state of mind and the same stands proven through the testimony of one of the attesting witnesses, namely, Suraj Bahadur Limboo who was e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant No.3 herein). Allegedly, he divorced his first wife and solemnised another marriage with Kamla Pradhan (Plaintiff1/ Respondent No.1 herein) who gave birth to a child namely Ku. Ritu (Plaintiff2/ Respondent No.2 herein). Bahadur Pradhan (hereinafter referred to as testator ), seven days before his death (07.08.1992), executed a Will on 30.07.1992 in the presence of two witnesses namely Lok Bahadur Thapa (not examined) and Suraj Bahadur Limboo (PW2). 2. After the death of the testator, the Plaintiffs filed a case for receiving the testator s dues wherein a succession certificate was issued in favour of Respondent No.1 by VI Additional District Judge, Jabalpur vide order dated 05.07.1995. Proceedings stood concluded with the reversal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 6. The issue that arises for our consideration is whether there are sufficient grounds that warrant interference with the concurrent findings of the fact, upholding validity of a Will. 7. Before delving into the facts of the case, it is pertinent to reproduce the relevant provisions dealing with the validity and execution of the Will. Section 63 of the Indian Succession Act, 1925 Execution of unprivileged willsEvery testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules: ( a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence Act. 9. A Will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator s property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation. 10. Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426 (3Judge Bench), Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 (3J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estator, however, the presence of all witnesses at the same time is not required; iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined; v. The attesting witness should speak not only about the testator s signatures but also that each of the witnesses had signed the will in the presence of the testator; vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with; vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc. 11. In short, apart from statutory compliance, broadly it has to be proved that (a) the testator signed the Will out of his own free Will, (b) at the time of execution he had a sound state of mind, (c) he was aware of the nature and effect thereof and (d) the Will was not executed under any suspicious circumstances. 12. Coming to the facts of the case, a careful perusal of the relevant material on record and applying the provisions and the case laws it is evident that the Will was duly executed by the testator in the presence of witnesses out of his free Wil ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
